A Ruling for Capture

Soon the state Supreme Court will decideEdwards Aquifer Authority v. Day, a landmark case that could upend the state’s rickety system of groundwater regulation. At issue is whether landowners have an absolute, vested right to the groundwater beneath their property, as the 4th U.S. Circuit Court of Appeals found. “If this theory were to prevail in this Court, groundwater conservation in Texas would be finished,” warns an amicus brief filed by the Texas Association of Groundwater Conservation Districts.

A foreshadow of that scenario can be found in a little-noticed court decision in another case, Bragg v. Edwards Aquifer Authority. In May, now-retired District Judge Thomas Lee awarded compensation to landowners for the “taking” of the water beneath their property. The litigants in that case have been squared off since 1996, when the newly created Edwards Aquifer Authority prohibited Glenn and JoLynn Bragg, a Medina County couple, from pumping as much water as they wanted to irrigate two pecan orchards. “The Braggs invested their lives, labor and money in a good family farm that could be passed on to their heirs,” wrote Judge Lee. “That life plan has been undermined, and their investment severely devalued.” Lee calculated the Braggs’ loss at $867,000.

The authority says it had to follow its own rules, which are designed to conserve the aquifer, the sole source of drinking water for San Antonio. Opening the door to such “takings” claims could lay waste to the agency, said Darcy Frownfelter, general counsel for the authority. Thousands of people own land over the aquifer, and each could sue for more water. There’s no reason to think “takings” suits would be limited to the Edwards Aquifer Authority. There are 98 groundwater conservation districts in the state, and many are moving toward pumping caps. “Basically you’re hog-tying them,” said Amy Hardberger, a water expert and attorney with the Environmental Defense Fund of Texas.

In Edwards Aquifer Authority v. Day, South Texas farmers Burrell Day and Joel McDaniel are suing for the right to pump as much water as they say they need for irrigation. If the State Supreme Court decides the two unequivocally own the portion of the aquifer beneath their land, then the Bragg case can move forward. If not, Bragg is probably moot. The fate of Texas water hangs in the balance.

—Forrest Wilder

dept. of popular opinion

A Polling Paradox

When Gallup released its “State of the States” poll numbers, we can only imagine the jubilation that might have poured from Texas Democrats. The state’s long-suffering political losers surely found something to smile about when they saw that Texans are not “above average” in their identification with the GOP. Gallup says we have the “average” number of voters calling themselves Republican or “Lean Republican.” While Texas is “above average” in the number who say they’re conservative, that percentage is nowhere near that of states like Wyoming, Idaho and Oklahoma.

Does this mean Texas is poised to go blue in November? That’s still a long shot. Among the big states—California, New York, Florida—Texas is the most Republican and most conservative. The Republicans will fight like hell to keep it red. “Sure, it’s not as solidly Republican as Wyoming, but Wyoming has three electoral votes,” says Alan Abramowitz, a political science professor at Emory University who specializes in polling and voting behavior.

“Texas is absolutely one of the toughest states for Democrats,” says Larry Sabato, a political science professor at the University of Virginia whose website, Sabato’s Crystal Ball, caters to political junkies and soothsayers. Sabato says the Gallup numbers don’t give the full picture. “It’s a Republican year,” he says, “and Texas is fundamentally conservative and Republican.”

Sabato doesn’t dismiss the Democrats’ chances. He has listed the Texas gubernatorial race under “leans R”—a much better prospect for Democratic candidate Bill White than, say, “likely R” or, worst of all, “safe R.” Sabato’s reasoning has more to do with Gov. Rick Perry’s seemingly endless tenure than with an ideological shift. Sabato says the Texas climate is actually worse for Democrats now than a few years ago. “If Bill White were running this race in 2006,” Sabato says, “and Perry at that time had already served 10 or 11 years, the results might be different than I think they’re going to be.”

For now, experts are telling Democrats it’s not time to pull out the party hats. Polling numbers are “the first word,” says Sabato. “Not the last word.”